JUDGMENT
V.M. Sahai, J.
1. The petitioner was posted as permanent cashier of Life Insurance Corporation of India, branch office, Bilaspur, district Rampur (in brief corporation). On 5.12.90 a complaint was made by one Shri Anil Kumar Gupta, an agent of policyholder No. 250261734 of one Shri Bhoj Raj Singh that he has not received the commission on the premium of Rs. 533 deposited on 13.8.90. The corporation appears to have made some inquiries and the petitioner was charge-sheeted on 29.4.91. Two charges were framed against him, one for temporary embezzlement of Rs. 533 realised from the policyholder on 13.8.90 but deposited on 28.11.90 and the second, inserting an entry in the carbon copy of fly sheet No. 008.
2. In reply, it was not denied that receipt for Rs. 533 was made on 13.8.90 but since the policyholder was short of money, the receipt was not issued to him nor any entry in any other record was made. The petitioner stated that the entire amount was deposited by the policyholder on 28.11.90. He denied any overwriting in the carbon copy of Sheet No. 008.
3. The petitioner examined the policyhoider, father of the agent and himself as witnesses. The policyholder stated that he went to deposit the amount in August and receipt was also made but he could not deposit the amount as it was short and he deposited the amount in
November. The father of the agent stated that the policybolder after the complaint met him and informed that he deposited the amount in November 1990 only. The inquiry officer held that the statements of witnesses supported petitioner’s claim and created question mark against charge No. 1. But then he proceeded to examine the circumstances and drew adverse inference against the petitioner mainly because there was conflict in the complaint made by the agent and the statement made by his father before him and the policyholder’s statement was not the same as was made by him during inquiry on 3.6.91. The inquiry officer drew adverse inference because when the amount was deposited on 28.11.90, then the receipt should have been of November and not August. The inquiry officer held that no receipt of delayed payment was made. On the second charge, he placed reliance on report of handwriting expert who was not examined by him. The inquiry officer submitted his report. And the disciplinary authority by his order dated 21.1.92 removed the petitioner from service. The appeal filed by the petitioner was dismissed on 22,2.92. The orders of removal as well as appellate order have been challenged in instant writ petition.
4. I have heard Shri Manoj Mishra learned counsel for the petitioner and Shri R. P. Goel learned Advocate General assisted by Shri Manish Goel learned counsel for the corporation.
5. The learned counsel for the petitioner attacked the procedure followed by the inquiry officer. He argued that once the inquiry officer came to the conclusion that charge No. 1 was doubtful, he acted against law in considering irrelevant material and circumstances to hold that the charges against petitioner were proved. Reliance was placed on Ministry of Finance and another v. S. B. Ramesh, 1998 (3) SCC 227. The learned counsel argued that the appellate order was against Regulation 46 (2) as no reasons have been given for upholding the order.
The learned Advocate General, on the other hand, vehemently defended both the appellate order and the order passed by the disciplinary authority. He relied on Bank of India and another v. Degala Suryanarayana, JT 1999 (41 SC 489, U. P. State Road Transport Corporation and others v. Munshi Ram and others. JT 1999 (6) SC 6 and U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and others. 1999 (1) SCC 741, and urged that the scope for interference by High Court was limited and the finding recorded by the inquiry officer being based on material on record, this Court should not interfere.
6. In the Banfc of India (supra), it was held.
“Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravemen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the finding of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”
7. The gravamen of the charge No. 1 against petitioner was temporary misappropriation. As mentioned earlier, the inquiry officer himself found that in view of the
deposition of the policyholder that he deposited the amount on 28.11.90 a question mark arose against charge No. 1. But the inquiry officer instead of exonerating the petitioner drew an inference against him from the circumstances mentioned earlier. There is no observation much less any finding by the inquiry officer that the information given by the pollcyholder to the department on 6.3.91 or the allegations made in the complaint of Shri A. K. Gupta on 5.12.90 were supplied to petitioner. The charge-sheet does not mention any material on which it was proposed to rely nor there is any document to show that the inquiry officer supplied these papers to the petitioner on which he placed reliance. Even the counter-affidavit does not say so. The reason is obvious. The corporation was relying on the receipt made in August, 1990 and the allegation in the complaint that the complainant has not received the commission on the amount deposited in August. But once the policy holder appeared and explained the reason for making of the receipt in August, 1990 but deposit by him in November, 1990, the entire basis of the charge disappeared. If the inquiry officer intended to rely on any other material, it was obligatory on him to inform the petitioner and afford opportunity to him to defend. The finding in an inquiry report based on extraneous material cannot be accepted as binding. It was against principles of natural Justice. The other circumstances due to which the inquiry officer was of the opinion that the charge No. 1 was proved that the receipt was made on 13.8,90 ; that the explanation of the policyholder that the receipt was made but it was not issued to him as he was short of, money was not satisfactory ; that it could not be clarified as to who signed the receipt on 13.8.90 and if the amount was deposited on 28.11.90 then why it was is not mentioned in the receipt. Each circumstance was irrelevant. The petitioner himself admitted that he made the receipt on 13.8.90 but he did not issue it to the policyholder, as he did not deposit the entire amount.
The claim of the petitioner was supported by the deposition of the policyholder. The circumstances too support the petitioner. A policyholder after depositing the amount would not leave without taking the receipt. The receipt, Jt appears, was not detached from the receipt book. Once premium is deposited and receipt is issued, the entry has to be made in other registers. This was done on 28,11.90 and not on 13.8.90. It was much before the complaint of Shri A. K, Gupta. The inferences drawn by the inquiry officer thus were against the record and normal course of conduct. In any case, they did not constitute evidence. The finding of misappropriation, therefore, is based on no evidence.
8. For a charge of temporary
misappropriation, it was necessary
for the corporation to prove that the
money was entrusted to the
petitioner. The inquiry officer has not
referred to any material, which could
prove entrustment. It appears there
was no evidence. Once the
policyholder deposed that he
deposited the amount on 28.11.90,
there remained no direct evidence to
prove entrustment. Shri A. K. Gupta
the agent did not appear before the
inquiry officer. His father who
appeared did not support the version
of the corporation. It is not the case
of the corporation that Shri A. K.
Gupta deposited the amount on
13.8.90. On the other hand.
policyholder clearly deposed that
even though receipt was made but
since he fell short of money, he did
not deposit nor any receipt was
issued to him. The Inference drawn by
the inquiry officer on the receipt
could not in view of the
circumstances establish
misappropriation. Other
circumstances were equally
irrelevant. It would have been better if
the petitioner while issuing receipt on
28.11,90 would have mentioned that
even though the receipt was prepared
on 13.8.90 but it could not be issued
and it was being issued on that date.
But that was only irregularity. It could not establish misappropriation.
The inquiry officer was not justified in raising inference against petitioner
only because the petitioner was incharge of cashbook, fly sheet and ledger till 28.1 1.90. The circumstances mentioned by the Inquiry officer did not prove misappropriation. The learned Advocate General vehemently argued that finding of the inquiry officer being based on evidence, the Court cannot re-examine It. I have already extracted the relevant paragraph from Bank of India (supra). The Court while emphasising the importance of finding of fact has pointed out circumstances in which a finding of fact is not binding. I have pointed out various circumstances not with a view to re-examine the material on record but to find out whether the findings are based on relevant and admissible material on record and whether any reasonable person would have drawn such inference as has been drawn by the inquiry officer. The decision in Bank of India (supra) is therefore not helpful. Similarly the other decision does not help the respondents. Observations in U. P. State Road Transport Corporation (supra) in paragraph 9 are extracted below :
“The question whether the authority can act upon the report filed by the Assistant Traffic Inspector or not and whether these reports should be accepted or not is matter which has to be examined by the inquiry officer. The Court does not sit in appeal over the findings of inquiry officer, if the finding are based on uncontroverted material placed before the inquiry officer, it cannot be said that these findings are perverse.”
In that case, one Shri Pandey Assistant Traffic Inspector filed certain reports. He was examined as well but the delinquent did not cross-examine him. The Tribunal relied on his report and deposition. The High Court held that Shri Pandey was not examined. The Apex Court held that the High Court erroneously recorded this finding without examining the record before inquiry officer as Sri Pandey had been examined. It was for this reason that the Apex Court held that the question of admissibillty of report was to be examined by the
inquiry officer and the High Court could not sit in judgment over it. In the present case, as observed earlier, I have not re-examined the findings and come to a different, conclusion but I have pointed out the manifest errors committed by the inquiry officer which has rendered his finding contrary to principles of natural justice and against law, therefore, in well recognised exception permitting the High Court to set it aside an order based on Inadmissible or irrelevant material under Article 226.
9. As regard second charge, the petitioner denied it. The inquiry officer sent the interpolation in the carbon copy of sheet No. 008 for experts opinion. He appears to have opined that it tallied with petitioner’s signature. But the expert was not examined. In law, expert evidence is weak evidence. It requires corroboratlon. The Apex Court in State of Maharashtra v. Sukhdev Singh, 1992 (3) SCO 700, has cautioned against placing implicit reliance on it. It is true that rules of evidence do not apply to disciplinary proceedings but if prudence requires under Section 45 of the Evidence Act that expert opinion should be corroborated : then it is more so in disciplinary proceedings. The inquiry officer should have examined the expert and afforded an opportunity to the petitioner to cross-examine him irrespective of whether petition asked for it or not. The charge of forgery or interpolation in the records is serious charge. The inquiry officer should have taken every care to establish it by relevant material. The sending of the carbon copy which was not clear as observed by the inquiry officer himself to the expert was not enough. He should have examined him and afforded opportunity to petitioner to cross-examine him. The failure to produce the expert rendered his evidence weak. And in absence of its, corroboratlon, it could not be relied to hold that the charge of forgery was proved.
10. As regards the appellate order, Regulation 46 (2) requires that in appeal directed against orders passed under Regulation 39, that is
imposing punishment on the employee, the appellate authority shall consider whether the procedure provided had been followed by the inquiry officer. But the appellate authority without giving any reason dismissed the appeal. The appellate order is, therefore, contrary to Regulation 46.
11. In the result the writ petition succeeds and is allowed. The orders passed by the respondents dated 21.9.92 Annexure-7 and order dated 22.12.92 Annexure-10B to the writ petition are quashed. The respondents are directed to reinstate the petitioner with alt consequential benefits of service within a period of three months from the date a certified copy of this order is produced before the respondents.
12. There shall be no order as costs.